Subhash vs State of U.P.

M.C. Jain, J.—Single accused Appellant Subhash has preferred this appeal against the judgment and order dated 21.6.2001, passed by the Additional Sessions Judge, Court No. 3, Aligarh in Sessions Trial No. 660 of 2000 whereby he has been convicted u/s 302, I.P.C. and sentenced to life imprisonment as also with a fine of Rs. 5,000. In default of payment of fine, one year''s further imprisonment has been awarded.

It would be in the fitness of things to start with the broad essentials of the case. The murder of Raj Kumari, own wife of the accused Appellant is involved in this case. The incident occurred on 8.12.1999 at about 5.30 a.m. at the outskirts of village Ghaghauli, P.S. Tappal, District Aligarh. She was allegedly done to death by shooting by the accused Appellant. The F.I.R. was lodged the same day at 6.35 a.m. by Rajendra Singh P.W. 1-eye-witness (brother of the deceased) after getting it scribed by another eye-witness Raj Pal Singh P.W. 2. The distance of the police station from the place of occurrence was about 15 kms. The deceased was married to the accused Appellant in 1990. He was employed as commission agent in a company (Golden Forest) at Ghaziabad. For about one year preceding the incident, he had developed illicit relations with a call-girl Jyoti Sharma and on this account the relations between him and the deceased were embittered. She used to narrate her tale of woe to her mother Shanti Devi and sister-in-law (Rajendra Singh P.W. 1''s wife Mithlesh). Through them, Rajendra Singh P.W. 1 had come to know of it. He repeatedly counselled the accused Appellant-Subhash to set his feet on the right path and to desist from his immoral act of illicit relations with another lady, but to no effect. The result was that the frequent quarrels between the accused Appellant and his wife Raj Kumari (deceased) continued.

Rajendra Singh P.W. 1 had also got purchased a house at Ghaziabad for his sister Raj Kumari, but the accused Appellant started living there in with his-concubine Jyoti Sharma. The accused Appellant considered his wife (deceased) to be the hurdle in his illicit relationship with Jyoti Sharma. The deceased had even written two letters (Exts. Ka-2 and Ka-3) to his brother Rajendra Singh P.W. 1, the gist whereof was that her living with her husband had become most difficult. Her husband used to misbehave and assault her in the presence of his concubine Jyoti Sharma, asking her to leave him willingly as otherwise he would murder her because she was a hindrance in his relationship with Jyoti Sharma. Jyoti Sharma also used to taunt that Subhash (accused) belonged to her. She, through these letters, implored her brother to take her to her parental home as she was unable to live there because of extreme torture. These letters were stamped on 19.3.1999 and 5.11.1999 in the post office.

On 7.12.1999, Rajendra Singh P.W. 1 was informed in his village Kilpur through Shyam Singh-husband of his cousin sister Suman that his sister Raj Kumari (deceased) was in her sasural Ghaghauli and wanted to meet him. He and his cousin brother Raj Pal Singh reached Suman''s house at Jattari at about 5 p.m. Suman also told both of them that Raj Kumari was in difficulty and they should go to meet her. No conveyance was available at that time for going to Ghaghauli. Therefore, Rajendra Singh P.W. 1 and his cousin Raj Pal Singh P.W. 2 stayed at Suman''s place at Jattari. They started for Ghaghauli at about 4-5 a.m. on 8.12.1999 on a motorcycle. About two furlongs before Ghaghauli, they heard three shots and then saw in the light of motorcycle that the accused Appellant Subhash was standing with pistol in his hand ; a scooter was parked nearby on the seat of which Sobhit aged about 3 years (bhanja of Rajendra Singh P.W. 1 and son of the deceased and accused) was sitting ; Raj Kumari was lying nearby badly injured. He and Raj Pal were completely unnerved sighting it and immediately went to P.S. Tappal. Rajendra Singh lodged the F.I.R. at 6.35 a.m. after getting it scribed by Raj Pal Singh. The chik F.I.R. was prepared and the case registered.

The investigation was taken up by S.O. J. P. Bansal. He, accompanied by S.I. V. P. Singh P.W. 5, reached the spot and busied with the activities related to the investigation of the case. Panchayatnama of the dead body of the deceased was prepared by V. P. Singh P.W. 5 under the supervision of Investigating Officer J. P. Bansal, S.O. After being sealed, the dead body was sent for post mortem. The post mortem was conducted on 9.12.1999 at 8 a.m. by Dr. Syed Mohammad P.W. 3. The deceased was aged about 30 years and about one day had passed since she died. The following ante-mortem injuries were found on her person:

(1) A firearm wound of entrance 2 cm. x 2 cm. x abdominal cavity deep .5 cm. above umblicus on left side abdomen at 1 O''clock position, margins inverted, burning, tattooing present. Swelling on back of right side chest 7 cm. below lower end of scapula and just lateral to vertebral col. Pieces of wadding one tickli and 20 pellets recovered embedded in subcutaneous tissue, sealed and handed over to accompanying constable.

(2) Firearm wound of entrance 3 cm. x 2 cm. through and through on left side chest 8 cm. infero lateral to nipple at 5 O''clock position, margins inverted. Burning and tattooing present. Wounds of exit multiple in number in area of 7 cm. x 5 cm. margins averted. Wounds measuring 0.2 cm. x 0.2 cm. x through and through and 1 cm. x 1 cm. x through and through. Wounds of exit were on back of left side chest 5 cm. below lower end of scapula and just lateral to vertebral column.

(3) Oblique stripping mark of firearm burning 10 cm. x 3 cm. on right sub costal margin and adjacent abdomen.

(4) Contusion 2 cm. x 2 cm. on right side mandible just lateral to chin.

(5) Abrasion 3 cm. x 1 cm. on right side just above clipper bone.

After investigation the accused was booked for trial.

At the trial, the prosecution in all examined five witnesses. Out of them Rajendra Singh P.W. 1 and Raj Pal Singh P.W. 2 were the eye-witnesses. Dr. Syed Mohammad P.W. 3 had conducted autopsy on the dead body of the deceased.

The defence was of denial. In his statement u/s 313 of Cr. P.C., the accused Appellant admitted that the deceased was his wife and that he was commission agent at Ghaziabad in a company named as Golden Forest. He, however, denied rest of the accusations and pleaded false implication. According to him, he and his wife were going to Ghaziabad on the fateful day and time. Near persian wheel of Chhotey, he sat down to pump out faecal matter from his system. He heard sound of shooting and rushed to the scene, raising shouts. He saw that two unknown miscreants were running away after looting and shooting his wife. He chased them, but stumbled and became unconscious. The villagers brought him and his wife to his village and information of the incident was sent through Suresh to Police Outpost Jattari as also to the parental home of his wife.

Suresh was examined as D.W. 1 who projected the defence case this way that at the outskirts of Jattari, the deceased had been shot dead by the miscreants. Tube-well mechanic gave its information in the village. The villagers assembled and reached the spot. Raj Kumari was lying injured. At a little distance, Subhash (accused) was also lying unconscious. The villagers brought both of them on buggi to the village. After a while, Raj Kumari died. He, at the instance of the father of Subhash, went to give information at Jattari Police Outpost and also to Raj Kumari''s parental village Kilpur on a scooter.

Believing the prosecution case and rejecting the defence version, the trial Judge found the case to be fully established. He, accordingly, convicted and sentenced the accused Appellant as stated earlier.

We have heard Sri H. P. Singh, learned Counsel for the accused Appellant, Miss N. A. Moonis, learned A.G.A. for the State and Sri Devendra Dahema, learned Counsel for the complainant. The record has been carefully perused.

It should be stated before proceeding further that in this case, the time and place of the incident as also the death of the deceased by shooting are not disputed. Rather, these facts are admitted. Further, the presence of the accused Appellant at the time of incident is also an admitted fact. So, the principal and piquant question for decision is as to whether she was shot dead by the accused Appellant as alleged by the prosecution or by unknown miscreants after looting her as contended by the accused.

It has first been argued by the learned Counsel for the accused Appellant that the presence of the two eye-witnesses, namely, Rajendra Singh P.W. 1 and Raj Pal Singh P.W. 2 at the spot at the given time was doubtful. It is significant to point out that both the witnesses have given plausible explanation for their presence at the spot. Further, the F.I.R. regarding this incident of about 5.30 a.m. was lodged at the police station at 6.35 a.m. by Rajendra Singh P.W. 1 and it was scribed by another eye-witness Raj Pal Singh P.W. 2. There was, previous background of strained and bitter relations between the accused and the deceased coming to fore through the testimony of Rajendra Singh P.W. 1 and corroborated by the letters written by the deceased to him (Exts. Ka-2 and Ka-3) in March and November, 1999. The accused Appellant was leading an immoral life with his concubine, ignoring his wedded wife-Raj Kumari deceased. Not only this, he used to insult and assault her in the presence of his concubine, rendering her life most miserable. He even used to threaten her of his life, accusing her to be the hurdle in his illicit and amorous relations with his concubine Jyoti Sharma. A day preceding the incident, Rajendra Singh P.W. 1 had been informed in his village that his sister Raj Kumari was in her sasural and wanted to meet him. Therefore, he with his cousin Raj Pal Singh P.W. 2 set out from his village Kilpur and reached the cousin sister Suman''s house preceding evening. In the early morning next day, he and Raj Pal Singh started journey on a motorcycle from Jattari to reach Raj Kumari in village Ghaghauli. The distance from Ghaghauli and Jattari was only 7 or 8 kms. It was in the way, a little before Ghaghauli, that both of them happened to hear the shots and saw the incident, i.e., Raj Kumari lying in a pool of blood on the road with the accused being present with pistol in his hand and scooter parked nearby with Shobhit (son) seated on the scooter.

Keeping in view the background as narrated by Rajendra Singh P.W. 1 and Raj Pal Singh P.W. 2 corroborated by the letters of the deceased referred to above and the fact that the information had been received by Rajendra Singh P.W. 1 in his village the preceding day that his sister Raj Kumari wanted to meet him (Rajendra Singh) at Ghaghauli, there was nothing unusual that the two eye-witnesses had reached Suman''s place at Jattari in the preceding evening and started in early hours to reach Ghaghauli to meet Raj Kumari and they happened to see the incident in the way.

The prompt lodging of the F.I.R. by Rajendra Singh P.W. 1 at the police station which was scribed by Raj Pal Singh P.W. 2 is another factor cementing the presence of the two eye-witnesses at the spot and their having seen what they have narrated could not at all be doubted.

The second argument of learned Counsel for the accused Appellant is that the conduct of the two eye-witnesses was unnatural that they did not make any inquiry from the accused at the spot. They also did not care to take the victim for treatment or to take custody of the child seated on scooter. We do not think that there was anything unnatural in their conduct. They were completely unnerved after what they saw with their own eyes. They were unarmed. The accused had pistol in his hand. There was nothing unusual in their instant reaction that they reached the police station. As stated by Rajendra Singh P.W. 1, he got report scribed outside the police station by Raj Pal Singh P.W. 2, signed it and took it inside the police station.

The learned Counsel for the accused Appellant then argued that there was variation about the time of incident in the statements of Rajendra Singh P.W. 1 and Raj Pal Singh P.W. 2. He pointed out that as per Rajendra Singh P.W. 1 the incident took place at about 5.30 a.m. whereas according to Raj Pal Singh P.W. 2 they started from Jattari at about 4 a.m. and it took about 10-12 minutes to reach the spot on motorcycle. We do not think that there is anything noticeable about the time as spoken by Rajendra Singh P.W. 1 and Raj Pal Singh P.W. 2. It has to be kept in mind that time is not the essence of their life. The incident took place in wee hours and the report itself was lodged at the police station at 6.35 a.m. As per Suresh D.W. 1 himself, the time of incident was about 5-5.30 a.m. when the tube-well mechanic had gone to pass on information of the incident in the village. At that time, he was allegedly spreading fodder for cattle. To fix the time of incident meticulously by watch would be futile as has been attempted by the learned Counsel for the accused Appellant to dislodge the prosecution case. We reject this argument.

Learned Counsel for the accused Appellant next urged that as per Rajendra Singh P.W. 1 one way to reach Jattari is via Nagaria and the other is via Fojua and that he and Raj Pal had gone via Nagaria. On the other hand, as per Raj Pal Singh P.W. 2 they had gone via Fojua. This contention has no relevance, because it has come in the testimony of Rajendra Singh P.W. 1 that both routes join at the bridge of Gorula. At the time of the incident, they were proceeding beyond the bridge towards Ghaghauli. The distance between Ghaghauli and Jattari was itself only 7-8 kms. It is not possible to attach any importance to this argument.

We should point out that the ocular testimony completely reconciles with medical evidence that gunshot wounds were found on the person of the deceased with attributes indicating that they had been fired from close range. While pretending to bring his wife from Ghaghauli to Ghaziabad on scooter, the accused Appellant translated his evil design by transporting her to the other world by committing breach of sacred vow taken before sacred fire to protect her throughout her life. He did it with the evil and immoral design of carrying his illicit relationship with his concubine Jyoti Sharma. His own wife had become his eye-sore and he removed the hurdle by murdering her.

Another point worthy of notice is that the defence case projected through the statement of the accused Appellant u/s 313 of Cr. P.C. and through the testimony of Suresh D.W. 1 was not at all put to the two eye-witnesses in their cross-examination. Suresh D.W. 1 was the own brother of the accused Appellant in relation as admitted by him in his cross-examination. Obviously, he came to give him a helping hand to come out of the difficult situation resulting from the criminal offence committed by him. Really speaking, defence case was no more than a cock and bull story. There was no medical examination report of the accused Appellant to indicate that he sustained any injury by fall on the ground seeing the culprits who were allegedly running away after looting and shooting his wife and that he had become unconscious at the spot. The scooter was found at the spot. Had it been a case of loot, the miscreants would have ordinarily taken away the scooter also of the accused which was parked nearby. It was wholly unnatural that they could leave it there. There was not even speck of evidence to show that his wife had been looted by the miscreants. Moreover, if the miscreants had looted his wife, there was hardly any necessity of murdering her after completing their mission. It is also important to deserve that no report was lodged from the side of the accused as to his alleged defence version which, as we said, was not even put to the eye-witnesses in their cross-examination.

None else excepting the accused could have any motive or enmity against the deceased to commit her murder. She was a simpleton lady. He had a very strong motive so as to successfully continue his illicit relationship with his concubine.

Judged from all possible angles, it was clinchingly established to the hilt beyond any shadow of doubt that the accused Appellant mercilessly committed the murder of his own wife by shooting.

We see no merit in this appeal. We hereby dismiss it. As per the record, the accused Appellant-Subhash is in jail. The Chief Judicial Magistrate, Aligarh shall confirm it and in case he is out, he shall be arrested and lodged in jail to serve out the sentence of life imprisonment as also of payment of Rs. 5,000 as fine, in default of which another one year''s imprisonment has been awarded. Compliance report shall be sent within two months.

Certify the judgment to the lower court.